Intellectual Ventures and its 80,000 Patents

On Friday, Greg Gorder led a great discussion here at the University of Missouri School of Law as part of our symposium on Resolving IP Disputes. Gorder is a co-founder of the patent-law giant Intellectual Ventures. The focus of Gorder’s talk was on incremental invention and the “invention gap” associated with most products on the market. Intellectual Ventures basically defines this invention gap as the number of patents that a company is infringing when it makes or sells its products. The key figure that I walked away with was 80,000. Intellectual Ventures now owns over 80,000 patents and pending patent applications.

Later this week we should have video of the conference available for viewing.

While Mr. Gorder was speaking here at Mizzou, his company attorneys were busy filing a host of patent infringement lawsuits against the mobile carrier industry, including AT&T, Leap Wireless, Nextel, T-Mobile, and US Cellular. The patents in suit include U.S. Patent Nos. 6,640,248; 5,602,831; 6,023,783; 6,952,408; 6,370,153; 5,963,557; 8,310,993; 7,269,127; 7,848,353; 8,396,079; and 7,787,431. In typical aggregator form, the patents come from a diverse array of sources including Malibu Networks (a failed company with “promising technology” that “entered the market about two years too early”); Seiko (an ongoing company that wanted to monetize its invention surplus); California Institute of Technology (a large non-practicing entity); AirNet Communications; John Eng; IPWireless; Georgia Tech; and Neocific.

57 thoughts on “Intellectual Ventures and its 80,000 Patents”

Apparently it is politically correct to ignore that universities, many of which obtained the patents in suit though taxpayer funded research as is the case with the CalTech patent 6,023,783, are teaming up with patent trolls as a new source of revenue. The meme goes that universities are good and trolls are bad. The irony of Boston University filing its LED suit against Apple and others on a patent that is about to expire while their legal scholars Mr. Bessen and Mr. Meurer travel the exotic conference circuit warning the world on the evils of trolls is the kind of thing you can’t make up.I wonder how the famous distinguished alumni many of whom built companies in IP intense industries would feel at CalTech and Georgia Tech being the real party in interest on a troll action?Now it’s getting good.

Your post has the feel of that patents are bad. Are they? I don’t think so. I think patents do promote innovation. I think without patents there would suddenly be a giant void where now there is a free flowing of information. I think without patents corporations would halt a lot of research and development. I could go on. What I see is that people that have never been in innovation or have few general life skills disparage patents without understanding the key role they have played in our economy.Patents kick everyone in the pants to get moving. I think there is a problem right now. But, I think minor tweaks can fix them.And, I am one of those alumni (maybe not so distinguished) but I understand why they are monetizing their IP and approve.

the current scary troll stuff here in DC … doesn’t take into consideration the economic realities of the evolving IP marketExactly hich “economic realities” of the “evolving IP market” are you referring to, Arleen?Perhaps it would be wise to consider that the “evolution” of the IP market will certainly include restrictions put in place to prevent bottom-feeding and exploitation of weaknesses in the patent system.

“Patents kick everyone in the pants to get moving.”Unless of course someone already “protected” the goal of a certain functionality everyone has would like to achieve. In which case, they rather do not kick them in the pants since there is nothing to get to while moving that is not already covered.

The irony of Boston University filing its LED suit against Apple and others on a patent that is about to expire while their legal scholars Mr. Bessen and Mr. Meurer travel the exotic conference circuit warning the world on the evils of trolls is the kind of thing you can’t make upTherein lies the difference between the academic world and the real world. In the academic world, tenured professors teach a couple classes a semester and spend the rest of the time getting paid to think “big thoughts” and share them with others thinking “big thoughts.” On the other hand, in the real world, bills need to be paid, and to the extent that technology developed by the university can be monetized, then so be it. I wonder how the famous distinguished alumni many of whom built companies in IP intense industries would feel at CalTech and Georgia Tech being the real party in interest on a troll action?I would imagine that many of the successful alumni in IP intense industries would understand the value of IP â€“ it is difficult to be successful in an IP intense industry without it. As such, I would wager that a great many of them would understand why their universities are monetizing the technology.

The meme goes that universities are good and trolls are bad.The key distinction between the typical university and the typical troll is that the university (or one of its employees) invented (or allegedly invented) the claimed technology that is being asserted. I believe that’s true in the case of 6,023,783. If the university wants to sell or license its patent rights, then so be it.I also agree with you that choosing Intellectroll Inventures is a poor choice for a University (or any entity who would rather keep their fingers muck-free).Personally I think it would be a good idea to put restrictions on what universities (or any business) can do with patent rights obtained using public funds. At the very least, a requirement that the grant money be paid back to the university seems fair.

“The key distinction between the typical university and the typical troll is that the university (or one of its employees) invented (or allegedly invented) the claimed technology that is being asserted.”That is a ‘distinction’ without ANY legal significance. The ‘key’ you wish to use is nonsense.Quite, in fact, alienability of the patent property is something that our founding fathers EXPLICITLY designed into the system.So if you are attacking that attribute, then you are attacking one of the foundational aspects of the patent system.

That is a ‘distinction’ without ANY legal significance.I wasn’t aware that a “legal significance” was required to note differences between entities. In fact, I’m pretty sure there is no such requirement. Go blow your whistle somewhere else.if you are attacking that attribute, then you are attacking one of the foundational aspects of the patent systemOh noes! [clutches pearls]

(sigh)Once again Malcolm, this is a blog for discussing legal principles. You used the word ‘key’ which implies that the difference was important. If not important in a legal way, than how is it important? Because you say so?And your CRP posting techniques continue… blow my whistle? clutches pearls? To what objective standard of conversation do these phrases belong to? All the while you are quick to attack anyone who disagrees with you as ‘crazy’ or using strawmen or any other of the techniques that you employ on a constant basis.ANd why the secrecy with your posts? Why are you not listed in the community?

“while their legal scholars Mr. Bessen and Mr. Meurer travel the exotic conference circuit warning the world on the evils of trolls is the kind of thing you can’t make up.”Pretty sure those two guys don’t control the university.

Apparently it is politically correct to ignore that universities ….are teaming up with patent trolls as a new source of revenue.Who is “ignoring” this and why do you assume that the alleged “ignoring” is the result of “political correctness”?

The focus of Gorder’s talk was on incremental inventionAs opposed to non-incremental invention? Is this shorthand for the troll mythology that “there’s no such thing as obviousness if someone else is making money off it”?the “invention gap” associated with most products on the market. Intellectual Ventures basically defines this invention gap as the number of patents that a company is infringing when it makes or sells its products.”Most products on the market”? What? Surely Gorder didn’t suggest that “most products on the market” suffer from an “invention gap”. Maybe he’s talking about the “computer-related market”, in which case it doesn’t really matter what Gorder thinks or how he defines anything because the patent system is a complete joke when it comes to the examination and enforcement of computer-implemented j*nk.Did Gorder by chance describe to everyone what he believes is the key to the “success” of his business model? Is it that companies in the computer tech sector succeed only by theft of others property, and that he is some sort of Robin Hood figure bringing all those companies to “justice”? Did he have anything to say about the smaller parasites who wish they owned as much j*nk as he does?

6,640,2481. An application aware, quality of service (QoS) sensitive, media access control (MAC) layer comprising: an application-aware resource allocator at the MAC layer, wherein said resource allocator allocates bandwidth resource to an internet protocol (IP) flow associated with a software application of a user based on IP QoS requirements of said software application, wherein said resource allocator allocates said bandwidth resource in a packet centric manner that is not circuit-centric and does not use asynchronous transfer mode (ATM). Functionally claimed j*nk of the lowest possible order, the sort most beloved by bottom-feeders and grifters everywhere.Malibu Networks (a failed company with “promising technology” that “entered the market about two years too early””Too early” for whom? What “market” is Gorder referring to? And why does he care whether any company succeeds or fails on its own terms? All that matters is that the corpse is stiff enough to cause some damage if you twirl it around really fast. Promote the progress! Intellectual Ventures now owns over 80,000 patents and pending patent applications.Right. And this is “intellectual” property. And every one of those “properties” was obtained using consistent statements about the state of the art. There’s nothing at all “intellectually” dishonest about asserting piles of disparate “intellectual” property where each property was obtained by people who asserted, e.g., that everyone else’s fantasies about how a computer should function was “non-enabled.”

Holy crap – I assumed you had excerpted claim 1. But that is indeed the entire claim. So they have a claim to MAC-level bandwidth QoS, restricted only in that it isn’t ATM. So if you rule out ATM, that leaves only a couple things, like LANs and the internet.

Then kill it off.I would if Gorder and His Li’l Gang would sue me. But he’s not going to sue me because he knows he’ll never get any money from me. That’s because I have nothing to lose and everything to gain if Gorder sues me.The larger point is that it’s not my responsibility to “kill” the reams of computer-implemented j*nk that’s floating out there. Do you understand why, Arleen? And the fact I’m not filing 1000 re-exams this week doesn’t change the fact that (1) the claim is j*nk and and (2) lettting the public know that Gorder and his Li’l Gang are asserting j*nk claims is a positive step. People who stand by and clap while Gorder and his Li’l Gang line their pockets by asserting j*nk patents are part of the problem.

Then kill it off.If I feel like spending the money on that, I certainly will, Arleen. Or you could pay me. Or you could do it yourself. I’m not certainly not worried about whether I infringe the patent, though there is a chance that I might be. You might be infringing it, too. Who knows? We’ll find out when we get sued, I suppose.More importantly, the fact that I have other things to spend my money on right now doesn’t make the patent “better”, nor should it prevent me (or anyone else) from commenting on the patent.

it does suggest that you have no real basis for concluding that the patent is junkNo, it doesn’t suggest that at all. Nice try, though.which is what I think Arleen was suggesting.First, Arleen can certainly speak for herself. Second, perhaps Arleen should just come out and say what she means rather than “suggest” things in roundabout ways. Third, let everyone know if you think claim 1 is a valid claim. Put yourself in a defendant’s shoes, where the defendant has, say, a couple million dollars in the bank. Are you going to pay $1,000,000 for a license or are you going to tank it with one hand behind your back? Fourth, before you answer, why not trash Michael’s comment upthread? He also seems to believe it’s a ridiculously broad claim. Fifth, please show everyone a granted patent with a claim that you believe is invalid so everyone can see that you are capable of telling the difference. Thanks.

One has to wonder if the so-called troll problem would all but disappear if the idea that regardless of apparent claim scope one still had to prove that the accused product, machine, composition or process was either the same as or the equivalent of disclosed embodiments?I do not believe that most companies, individually inventing and without reference to the troll patent or a covered product of the troll company’s original assignees, would up with the same solutions as disclosed in a troll’s patent. They may solve the same problem, but they will do so in different ways. When claims cover subject matter beyond the disclosed embodiments and equivalents, are they not claiming results?If this is true, and I think it is true by large measure, the problem facing industry today from trolls is caused by claims that cover more than what was disclosed, and that extend instead to results.

Night, I am not so sure. If you claim a wall with a baffle ala Phillips, it makes no difference that the baffle is obligue because one of the disclosed purposes is that the baffle provide structural support. But assume that instead of reading the claims on a wall with perpendicular baffles, one read the claims on a concrete structure with embedded iron bars. One could do this if the claim was not to a baffle, but to a wall having an integrated structure configured to provide structural support for the wall.Now in this latter case, clearly the iron bars embedded in concrete is not the same thing or even close to being the same thing as the disclosed baffle, but it does the structural support function.

What exactly is supposed to be the meaning of what you wrote Ned? Do, a baffle can’t be some things. So what. A database can’t be some things either. (there is a case about that recently from J. Moore, although I think we would to overturn it in light of “J.” Lourie saying databases have no structure–it’s magic you know.)

Night, I was referring to the Phillips en banc case. It was all about a baffle and whether it had to be oblique.If you read the case, and the claim at issue, you will soon see that structural support and bullet deflection were two different reasons for a baffle, and the claim at issue was claiming the structural support.Once your read the case, we can discuss further.

Ned, of course I have read the case. More than once and over a period of more than a decade.Now re-read my comment with that in mind. What is the point of your comment Ned? I can tell you it does not support what you are pretending it does.You want to try to use Phillips to support that the patentee should only be entitled to literal embodiments and equivalents. Just bizarre. So wrong from someone so intelligent means bad purpose.

Night, we are discussing 2 claims: 1. A wall having abaffle. 2. A wall having anintegrated structure configured to provide structural support for the wall. Disclosed: a wall having spaced steel plates and a pluralityof internal baffles that provides structural support. Accused product: concrete wall having embedded steel rods. Assumption: a concrete wall having an embedded steel rod isnot the equivalent of the disclosed steel plates with internal baffles. Assumption: the claim literally reads on the concrete wall. Is there infringement? If the law were to conclude that there isinfringement then there is a very severe problem in patent law that we have toaddress because in no way should there be infringement in this case. The problem is with the claim in its scope andin its definiteness.

What is the invention and what is the prior art? If the prior art doesn’t disclose a wall having an integrated structure configured to provide structural support for a wall, then your claim 2 is perfectly fine.If I claim “widget 1 connected to widget 2” and I disclose that the connection is a resistance weld, are you saying that there is no infringement if the connection is a TIG weld, a screw, glue, a nail, a dovetail joint, or hook and loop material? Do I need a laundry list of connections in my specification?Also and repeating myself, what does this have to do with trolls?

Patent_Guru, 1) prior art structures should be given a broad construction and may properly be claimed functionally. 2) The invention itself, the so-called point of novelty, cannot be claimed functionally — even though it is done all the time. It is just that the Federal Circuit is not following the law or it is once again defying the Supreme Court.If claims to the novel subject matter literally cover subject matter that is not the equivalent of the disclosure, then the claims either are invalid or should be construe per 112(f).However, if the novelty lies in a combination of functional steps, the claim might properly be construed as a process.

The invention itself, the so-called point of novelty, cannot be claimed functionallySure it can. As you admit, it is done so all the time. I worry about the law as it is — not the law as someone wishes it to be.BTW … I claim “a distributor.” Is that structural or functional?

was either the same as or the equivalent of disclosed embodiments?How does this solve the “troll” problem? Your proposal eliminates claims, as we know them today, and replaces them with “I claim the embodiments and equivalents thereof as disclosed in the specification.” This does not to target trolls. Instead, it targets all patent owners and will lead to 200+ page specifications that recite laundry lists of alternative embodiments/features. This is not an improvement.When claims cover subject matter beyond the disclosed embodiments and equivalents, are they not claiming results?It all depends upon what you mean by “result.” I am the first person to invent the chair and I disclose a base (for sitting) and three legs extending from the base that support the base. I can be said that the “result” is providing something that can be sat upon.Should my claim cover chairs with 4 legs? with a back rest? with arm rests? A padded seat? I disclose the chair is made out of oak. Am I out of luck if somebody uses pine? Perhaps I disclose the chair is made of wood. Am I out of luck if somebody uses a composite of wood with metal reinforcement?

Patent Guru, if you disclose a backless chair and claim a chair with three legs, where the prior art had four, and the issue is whether a chair with 3 legs and backrest is non infringing, the addition of subject matter to a claimed invention does not remove infringement. AB Dick v. Burroughs, 713 F. 2d 700 (Fed. Cir. 1983). But if one claims a “utilitarian object configured to support a human in a sitting position and having extensible members adapted to interface with a flat surface in a plane” and you read the claim on chair with four legs, then you might have a problem.Most non patent attorneys read a specification first to determine what the invention is. If the claims can be read on something completely different, then there is a problem.

you read the claim on chair with four legs, then you might have a problem.That is a BRI and prior art problem. What does that have to do with trolls? If the claims can be read on something completely different, then there is a problemIf that reading occurs prior to the patent issuing, then that is a basis for a rejection.

Patent_Guru,Iâ€™m not so certain that if a claim that requires that the legs of a chair intersect the flat surface of a floor in a plane can read on a four-legged chair. It is a given that a four-legged chair in reality probably never intersects a flat surface in a plane. There is a problem of proof.

It is a given that a four-legged chair in reality probably never intersects a flat surface in a plane.Actually, in reality, it isn’t that hard. I won’t delve into the exact materials but it involves the notion that all materials deform to one extent or another.Regardless, as anon points out below, what do this have to do with trolls?

Still not seeing a link to the ‘troll’ issue.The whole dust-cloud of the ‘troll’ is based on who owns a property. Since patents are fully alienable, the ‘who’ and the ‘what’ cannot be forcibly linked as is being attempted.Such is fallacy.

Anon, one of the main reasons we have trolls in my opinion is the lack of clarity and breath of claims. If the claims clearly and distinctly pointed out the invention as they are required to do by the statute, there would be a lot less ability for any so-called Troll to accuse a company of infringement.This very problem was identified by the Supreme Court in Haliburton, when it held functional claims to be indefinite. It is the apparent scope of these claims which is the problem.

one of the main reasons we have trolls in my opinion is the lack of clarity and brea[d]th of claimsTrolls can still license perfectly clear claims that don’t extend farther than the breadth enabled by the specification. Additionally, operating companies can license patents with unclear claims with extensive breadth. There is no direct tie between claim scope and trolls.

Both true. But it is truly unlikely, in my view, for an entire industry to use the disclosed invention of a patent unless the invention claimed were indeed fundamental. But industries as a whole do nominally infringe patents that claims a result. This truism has long been known and it is why the Supreme Court has condemned functional claims since at least Morse, and extending up to and including Halliburton. The Federal Circuit — it has the attitude regarding functional claims of that guy from Mad Magazine. â€œWhat me worry?â€

Ned,I recognize that you are expressing an opinion – but you are not being persuasive because you are not showing any link between the ‘who’ and the ‘what.’I get that one of your crusades is against ‘functional claiming.’ But your dependence here on sticking the “Troll” label on your crusade actually weakens your position. I refer you (again) to the series of articles by S Moore (of Tafas fame) at IPWatchdog and the government’s own GAO report.Let’s stop kicking up dust.

Anon, if one is measuring quality by whether or not the patents are found valid and infringed, then of course the patents would be of high quality by that measure regardless that they functionally claim the invention. You and I both know though that the PTO and the Federal Circuit both have largely abandoned the doctrine of functionality. Rather than having a per se rule, they will look to whether or not the full scope of the claims are enabled. In other cases they will construed the claims to be governed by Â§112(f).In either case, they ignore Halliburton which held that such claims are inherently indefinite. That case has not been overturned. Â§112 (f) authorizes functional claiming only in a specific form which signals the reference to the specification. When the applicant does not use that form, Halliburton would dictate that the claims are invalid. No if’s, and’s or but’s.

Regarding evidence linking functionality to trolls, I think it is self-evident that if a claim nominally covers the whole industry, it will attract trolls regardless that the actual disclosed embodiments are not used by anybody. This is the same as a Selden patent that cause so much damage at the turn of the last century.

Les, let us not confuse the issue. The claims can be as broad as the disclosure. If you claim a genus, you have to give examples. If you claim a range, you have to give examples. The scope of the claims can be broad if the disclosure is broad.But having invented one mouse trap, one cannot claim all apparatus that catches mice.

That’s how some other countries do it. Makes some sense, because the specification shows what the inventor actually knows, not what people later make up and somehow twist to fit the vague and legalese claims.

Mainly the problem is the use of generic terms and functional limitations that both read on disclosed embodiments and also read on other ways of accomplishing the same result. Prior to ’52, the courts routinely limited such claims to the corresponding structure, materials and acts and equivalents.How much of the corresponding structure is necessary? Enough, but no more, to carry out the recited function.